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IMMIGRATION

IMPACT:
THE ADULT USE OF
MARIJUANA ACT
ANALYSIS OF CALIFORNIA'S PROPOSITION 64
KATHY BRADY, SENIOR STAFF ATTORNEY
ANGIE JUNCK, SUPERVISING ATTORNEY
NIKKI MARQUEZ, LAW FELLOW

Acknowledgments.
This report is dedicated to the hundreds of thousands of
immigrants who have unjustly faced disproportionate
punishments due to drug convictions.
The authors extend thanks to Drug Policy Action for the
funding to make this report possible. Additionally, the
authors are grateful for the editing assistance provided by
Immigrant Legal Resource Center (ILRC) colleague Rose Cahn.
Founded in 1979, the Immigrant Legal Resource Center (ILRC)
is a national nonprofit resource center that provides
immigration legal trainings, technical assistance, and
educational materials, and engages in advocacy and
immigrant civic engagement to advance immigrant rights.
To download this report or to learn more about our work,
please visit: https://www.ilrc.org/.
Copyright 2016 Immigrant Legal Resource Center
All Rights Reserved

Contents.
INTRODUCTION
THE INTERSECTION OF IMMIGRATION
CRIMINAL LAW

1
&

OVERVIEW OF PROPOSITION 64
PART I:
THE IMPACT OF MARIJUANA OFFENSES
ON IMMIGRANTS
PART II:
THE EFFECT OF PROP. 64 ON POSTCONVICTION RELIEF FOR IMMIGRANTS
CONCLUSION
FOOTNOTES

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5
6

21
26
27

INTRODUCTION
Proposition 64, The Control, Regulate and Tax Adult Use of Marijuana Act or the Adult Use of
Marijuana Act (hereafter Prop. 64) will decriminalize (1) minor marijuana offenses (2) for adults 21
and older in California and reduce criminal penalties for most other marijuana offenses (3), while
establishing a tightly regulated system for commercial activity. Within the immigration context,
Prop. 64 provisions that decriminalize certain minor marijuana offenses will provide crucial benefits
to noncitizens, because the immigration consequences for minor possessory drug offenses can be
severe and often without any recourse.
California is home to more than 10 million immigrants, or a quarter of the total foreign-born
population in the U.S (5). One out of every four persons living in the state was born in a foreign
country (6). Nearly half of California immigrants (47%) are naturalized U.S. citizens and another 26%
have some sort of legal status including legal permanent resident status and visas (7). It is estimated
that 2.67 million of the 11 million undocumented immigrants in the U.S. live in California (8).
The vast majority of Californias immigrants were born in Latin America (53%) and Asia (37%) (9).
Because the majority of immigrants are non-white, they are harmed by well-documented racial
inequalities in drug law enforcement nationally and across California (10). Between 2001 and 2010,
there were more than 8 million arrests for marijuana related offenses across the U.S. (11), 88% of
which were for possession offenses (12). In 2014, marijuana possession arrests made up nearly half of
all drug arrests in the U.S. (13) Despite comparable rates of use across racial groups (14), racial
discrimination in marijuana arrests have been found across the country (15). As with the rest of the
country, marijuana offenses are unequally enforced in California, and black and Latino communities
are disproportionately targeted and harmed (16). In Californiawhere there were 465,873 marijuana
arrests between 2006 and 2015Latinos alone make up more than one-third or 38.4% of the states
population (17).
In recent years, the federal government has moved away from harsh drug sentences and is working
to ease prison-overcrowding. Despite these reforms, immigrants are being left behind, and they are
still subject to extreme and permanent penalties in the immigration context for even very minor
possession offenses. In October of 2015, the Department of Justice released 6,000 inmates early
from prison as a result of changes to the federal sentencing guidelines for nonviolent drug offenses
(18). However, one-third of those inmates were foreign-born and were deported (19). This
demonstrates that, even as criminal justice system reforms ease penalties for persons convicted of
minor drug offenses, the consequences for immigrants remain severe.
Deportations destroy California families and fracture whole communities, particularly in California
where one out of every two children lives in a household headed by at least one foreign-born
person (20) (and the vast majority of children are U.S. citizens) (21). In a recent six-month period, it is
estimated that more than 46,000 mothers and fathers of U.S. citizen children were deported
nationally (22). In California, it is estimated that 6.2% of children in Los Angeles and 5.9% of children
in San Diego currently in the foster care system have parents who are detained or have been
deported (23). Because an estimated 13% of Californias children have an undocumented parent
(24), drug convictionseven those for minor possessory conducthave ripped apart numerous
California families and communities.

IMMIGRANT LEGAL RESOURCE CENTER

PAGE 1

INTRODUCTION
Prop. 64 will help to protect a significant number of individuals and families from severe
immigration penalties based on minor marijuana offenses.
This is because:

Prop. 64 decriminalizes minor marijuana offenses for persons age 21 and older, and thus
will prevent noncitizens in this age group from suffering severe immigration consequences
based on this conduct. Specifically, because of Prop. 64 some noncitizens will avoid
becoming deportable (which is when a permanent resident or other person with lawful status
loses that status and can be permanently deported from the U.S.) or inadmissible (which is
when a noncitizen who otherwise is entitled to apply for lawful immigration status or
admission to the U.S. becomes barred from eligibility, and is deported from the U.S.) for
having engaged in minor marijuana offenses.

Prop. 64 reduces minor marijuana offenses to infractions for persons 18 to 20 years of age.
Although the law is unclear, an infraction might not be a conviction for immigration
purposes (4). Even if it is held a conviction, it will not be a bar to a few key forms of
immigration relief. Thus, to some extent, Prop. 64 will reduce the number of persons 18 to 20
years of age who face severe immigration consequences as a result of convictions for a minor
marijuana offenses.

Prop. 64 provides for post-conviction relief that can eliminate some or all of the
immigration consequences that flow from a prior conviction for a minor marijuana offense.
This will further reduce the number of people subject to deportation for marijuana-related
conduct, while opening up opportunities and providing family security for noncitizens with
past marijuana convictions.

By decriminalizing minor marijuana offenses in California, Prop. 64 is expected to decrease


the number of immigrants subject to deportation and detention, as well as prevent the
destruction of thousands of California families and communities.
By preventing California residents from being deported, or from being permanently barred
from obtaining lawful immigration status, Prop. 64 helps California families remain united
and helps local communities, especially Latino and other immigrant communities, remain
stable and functional.

IMMIGRANT LEGAL RESOURCE CENTER

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IMMIGRANT LEGAL RESOURCE CENTER

PAGE 3

THE INTERSECTION OF IMMIGRATION


AND CRIMINAL LAW
The Supreme Court recognized that although the criminal justice system and civil
immigration law are two distinct legal systems, deportation is nevertheless intimately
related to the criminal process. (25) When these two structures interact, the consequences
can be very severe.
The U.S. Immigration system is a complex set of laws, regulations, policies, and executive
actions that determine who can enter the country, who can remain in the country, and what
rights and benefits are afforded to those individuals. Aside from a few exceptions that are
not relevant to this discussion, immigration law is civil in nature.
Immigration laws are made by Congress and enforced by administrative agencies in the
executive branch of the Federal Government, primarily by the Department of Homeland
Security (hereinafter DHS). The Immigration and Nationality Act of 1952, as amended,
(hereafter INA) is the federal immigration statute (26). Congress has amended the INA
multiple times, starting in 1988, to impose increasingly drastic immigration consequences for
criminal acts and convictions, and for disabilities such as substance use disorders (27).
Within DHS, there are several sub-agencies responsible for the implementation of
immigration laws: United States Citizenship and Immigration Services (USCIS), United States
Customs and Border Protection (CBP), and United States Immigration and Customs
Enforcement (ICE) (28). Removals of unauthorized immigrants peaked at just over a record
409,000 individuals in 2012 (29). In order to prioritize and utilize funding, DHS has
enforcement priorities and programs in place that utilize local law enforcement to help with
immigration enforcement efforts, namely detection and arrest of immigrants. This growing
entanglement of ICE and local law enforcement means that individuals who have come
under the criminal justice system for a minor offense, such as simple possession of
marijuana, are now under the scrutiny of ICE at the same time.

IMMIGRANT LEGAL RESOURCE CENTER

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OVERVIEW OF PROPOSITION 64
What is Prop. 64?
Prop. 64 creates a comprehensive system to
legalize, control and regulate the cultivation,
processing, manufacture, distribution, testing, and
sale of nonmedical marijuana, including marijuana
products, for use by adults 21 years and older, and
to tax the commercial growth and retail sale of
marijuana (30) in California.
Relevant to this analysis, Prop. 64 will
decriminalize minor marijuana offenses.
In particular, a person who is 21 years and older can:
Possess, process, transport, purchase, obtain, or
give away up to 28.5 grams of marijuana and up to
8 grams of concentrated cannabis to persons 21
years and older without any compensation
whatsoever;

Potential Impact
Individuals who currently are serving a sentence for
a conviction and who would not have been guilty,
or would have been guilty of a lesser offense, under
Prop. 64 can petition for a recall or dismissal of
sentence because it is legally invalid (32).
If the sentence has been completed, an individual
can file to have his case dismissed and sealed
because the prior conviction is legally invalid, or
have the offense re-designated as a misdemeanor
or infraction (33).
Because criminal convictions can be a basis for
deportation, eliminating or reducing the
conviction, for example from a felony to a
misdemeanor, can significantly impact a persons
ability to remain in the U.S.

Possess, plant, cultivate, harvest, dry, or process up


to six living marijuana plants and possess the
marijuana produced by the plants;

Smoke or ingest marijuana or marijuana products;


and

Possess, transport, purchase, obtain, use,


manufacture or give away marijuana accessories to
persons 21 years or older without any
compensation whatsoever (31).

These actions are still punishable as infractions


for individuals who are between the ages of 18
and 20 when they commit the offense.

IMMIGRANT LEGAL RESOURCE CENTER

PAGE 5

Part I

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS:
WHAT IS A "CONVICTION" FOR
IMMIGRATION PURPOSES?
MARIJUANA OFFENSES
MARIJUANA OFFENSES
FELONIES"
MARIJUANA OFFENSES
INADMISSIBILITY

&

DEPORTATION

&

"

AGGRAVATED

&

IMMIGRATION IMPACT OF PROP. 64 ON 18


TO 20 YEAR OLDS
IMMIGRATION IMPACT OF PROP. 64 ON
DACA, TPS & ENFORCEMENT PRIORITIES
IMMIGRATION IMPACT OF PROP. 64 ON
INDIVIDUAL OFFENSES

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
Deportations in California have shattered families and devastated communities. Nationally,
minor drug convictions are by far the most common crimes for which people are deported
(34). In 2013 6,770 persons were deported for marijuana possession (35). From 2007 through
2012, more than 260,000 people were deported for a drug offense; while statistics are
incomplete, in at least 38% of the cases the offense involved possession of drugs for personal
use (36). In 2012, nearly 20,000 persons were deported for drug possession (37).
Deportations based on drug possession increased 43% from 2007 through 2012 (38).

A marijuana conviction can cause a variety of immigration penalties for a noncitizen. For
instance, a green card holder (lawful permanent resident) could lose his or her green card
and be placed into deportation proceedings. Immigration proceedings differ from criminal
proceedings in that they do not provide the same due process protections, such as a right to
government-appointed counsel, and can result in mandatory detention for an undetermined
amount of time.
There are three main ways that a marijuana conviction can harm a non-citizen. A conviction
can make the person 1) deportable; 2) an aggravated felon (deportable with additional
penalties); and 3) inadmissible. This section will provide an overview of each of these
immigration categories and how Prop. 64 will affect immigrants.

IMMIGRANT LEGAL RESOURCE CENTER

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IMMIGRANT LEGAL RESOURCE CENTER

PAGE 7

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
A. What is a Conviction for Immigration Purposes?
Federal immigration law has its own definition of when a state disposition amounts to a conviction that
triggers immigration consequences. Rather than accepting at face value what each state deems to be a
conviction, federal law endeavors to apply a uniform federal standard to evaluate all state offenses
consistently. This presents two questions relating to the effect of Prop. 64 on immigrants. Will federal law
determine that a California infraction amounts to a conviction that triggers immigration consequences?
And, will federal law accept Prop. 64 post-conviction relief as a true elimination of a conviction?

1. Does a California Infraction Amount to a


Conviction for Immigration Purposes?
Some infractions (state offenses that are less than
a misdemeanor) are held to be less than a criminal
conviction for immigration purposes, and thus
are held not to trigger immigration penalties. The
Board of Immigration Appeals has not provided a
set definition for when this occurs, but it has held
that generally an infraction should not be
considered a conviction where (a) the applicable
criminal procedure does not provide the minimum
constitutional protections required for a genuine
conviction (e.g., it does not provide for a right to a
jury trial, or does not require proof of guilt beyond
a reasonable doubt) and/or (b) the state does not
treat the disposition like a criminal conviction (for
example, the infraction cannot serve as a prior
conviction to enhance a sentence in a subsequent
prosecution, or it carries no possible jail sentence).
.

IMMIGRANT LEGAL RESOURCE CENTER

To date, there is no legal precedent as to whether


an infraction in California amounts to an
immigration conviction. While there is a strong
argument that it does not (39), advocates report
that in at least some instances immigration
authorities have treated California infractions such
as the current marijuana possession statute, Cal
H&S C 11357(b), as a conviction.
This question will be even more important if Prop.
64 passes because it will reduce several common
offenses to infractions. Going forward, persons 18
to 20 years of age who commit minor marijuana
offenses may be convicted of an infraction under
Prop. 64. See Part IV.E, below. (In addition,
persons who already have qualifying prior
misdemeanor or felony convictions for minor
marijuana offenses will be able to reduce these
convictions to infractions under Prop. 64 (see Part
V.B, below). They too may argue that the offense is
not a conviction, although that is a weaker case
(40). Immigration advocates will continue to seek
a clear ruling on the issue of whether a California
infraction is a conviction for immigration purposes.

PAGE 8

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
A. What is a Conviction for Immigration
Purposes?
2. Will Immigration Authorities Recognize Prop.
64s Post-Conviction Relief that Dismisses and
Seals a Prior Conviction?
Note that Prop. 64 may give persons with prior
qualifying convictions two possible means of
eliminating a conviction. First, if the offense is
reduced to an infraction, advocates at least can
argue that it does not amount to a conviction.
See Part IV.A.1. Second, if the offense is
eliminated by post-conviction relief, it might
cease to be a conviction as long as it is vacated on
a legal ground of invalidity, meaning it was
eliminated based on some legal error in the
process. Immigrants will be advised to take both
courses where possible: reduce and eliminate.
Federal immigration authorities do not honor all
state orders that provide that a conviction has
been eliminated by post-conviction relief.
However, they will give effect to a state order to
vacate a conviction due to legal invalidity,
meaning due to some legal error. Prop. 64 postconviction provisions provide that qualifying prior
marijuana convictions can be eliminated due to
legal invalidity, but immigration authorities
might assert that this is not sufficient. See
discussion in Part V.

IMMIGRANT LEGAL RESOURCE CENTER

B. Marijuana Offenses and Deportation


Any immigrant who has lawful immigration
status can lose that status if she becomes
deportable. She can be placed in
deportation proceedings (officially called
removal proceedings), and ordered deported
(removed). A lawful permanent resident,
refugee, or other person with lawful status
becomes deportable if convicted of almost
any offense related to a controlled substance
(41).
The most common example is a lawful
permanent resident. A lawful permanent
resident (green card holder) is an immigrant
granted the right to live and work in the U.S.
permanently, and who after a period of time
will have the right to apply to become a U.S.
citizen. Other examples of lawful immigration
status include refugees, asylees, and persons
with non-immigrant (temporary) visas such as
students, employees, and investors. While
they do not have all the rights that legal
permanent residents do, they too can remain
in the United States according to the rules
governing their status.

PAGE 9

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
B. Marijuana Offenses and Deportation
A person who is deportable is subject to arrest and
detention by federal immigration authorities. The person
can be detained during the duration of the removal
proceedings, which could last for weeks, months, or years.
Depending on the circumstances, some individuals who are
deportable can at least request a discretionary waiver
(pardon) of removal from the immigration judge. Other
individuals cannot even request relief, and they will
automatically be deported regardless of hardship to family,
rehabilitation, length of stay in the U.S., service in the U.S.
military, or other factors.
Any conviction of a controlled substance offense will make
an immigrant deportable and subject to mandatory
detention, with one key exception: a person is not
deportable based solely on a first conviction relating to
possession of 30 grams of marijuana or less (42). This
exception reaches possession, possession of paraphernalia,
or being under the influence, if the offense is related only to
30 grams or less of marijuana (43). This exception can help
many lawful permanent residents (44). But if the amount of
marijuana is over 30 grams, or involves conduct beyond
these offenses such as giving away or transporting a small
amount of marijuana, or possessing marijuana in a school
zone, or if the person ever receives a second marijuana or
other drug conviction in her lifetime, she will be deportable
(45). And if she ever takes a trip outside the U.S., she can be
refused admission back into the country (46).
Unfortunately there is no precedent establishing whether a
California infraction is a conviction for immigration
purposes. See discussion at Part IV.A.1, above. If it is held as a
conviction, then two infractions for possession of less than
28.5 grams of marijuana pursuant to current Cal Health &
Safety Code 11357(b) will make a permanent resident
deportable.

IMMIGRANT LEGAL RESOURCE CENTER

IN SUMMARY
TheEffectofProp.64on
DrugConviction
Deportations
Prop. 64 protects immigrants with lawful
status from being deported by
decriminalizing qualifying conduct by
adults 21 and older, such as possession,
possession of paraphernalia, giving away,
or transporting small amounts of
marijuana or marijuana products, or
cultivating up to six marijuana plants.
Prop. 64 also reduces this conduct to an
infraction for persons age 18 to 20. A
permanent resident who is convicted of a
single infraction for possessing, possessing
paraphernalia, or being under the
influence of this amount of marijuana will
not be deportable because the conduct
comes within this exception.
In addition the person can argue that a
California infraction is not a conviction for
immigration purposes; see Part IV.A.1,
above).
(

PAGE 10

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
C. Marijuana Offenses and Aggravated Felonies
In federal immigration law, certain convictions
are considered aggravated felonies. (47) An
aggravated felony is an offense that not only
makes the person deportable, but also destroys
almost any possibility that an immigration judge
could permit the person to stay in the U.S.
Although titled a felony, an aggravated felony is a
legal term of art that can include misdemeanors
as well as felonies and reaches several relatively
minor offenses. In California, cultivation of a
small amount of marijuana for personal use (48),
which Prop. 64 would decriminalize, is an
automatic aggravated felony.
With a drug aggravated felony the following
individuals are almost guaranteed to be
deported without any possibility of being
permitted to return:
A legal permanent resident (green card

holder), regardless of any mitigating factors.


The fact that the individual came to the U.S.
at a young age, has lived lawfully in the U.S. for
thirty years, runs a business that employs U.S.
citizens, cares for fragile dependents, is him or
herself elderly or frail, owns a home, or has
made other contributions to the community
are all factors that may not be considered;
An honorably discharged veteran of the U.S.
military service; and
A person who has proved that upon being
deported, she is likely to be persecuted in the
home country on account of her race,
religious beliefs, or other reasons.

IMMIGRANT LEGAL RESOURCE CENTER

PERSPECTIVES

Howard's Story

Howard came to the U.S. from Jamaica when


he was 17 years old with his green card. After
high school, he enlisted in the Navy and after
he was honorably discharged he started his
own small business. Howard was married to
a U.S. citizen and has two U.S. citizen children.
In 2010, after he had applied for citizenship,
he was placed in immigration detention for
two years until he was deported to Jamaica at
the age of 41 as a result of a guilty plea for a
drug offense from almost ten years before
that was characterized as an aggravated
felony.
Howard had let a friend from the Navy have a
few packages shipped to his house. The
packages were full of marijuana, and Howard
at the advice of his lawyer eventually pled to
felony possession of marijuana with intent to
distribute. Since being deported, Howard has
struggled to survive in Jamaica where he has
no friends or family, while his family in the
U.S. also struggles to adapt to life without him
(49).

PAGE 11

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
C. Marijuana Offenses and Aggravated Felonies

CALIFORNIA
EXAMPLE
In California in 2016, an elderly
long-time permanent resident
narrowly avoided being
deported as an aggravated
felon. Years earlier she had
been convicted of growing a
marijuana plant so that she
could create a poultice to apply
to her elbow to relieve arthritis
pain.
This offense, cultivation of
marijuana for personal use, is an
aggravated felony. A pro bono
project managed to stop the
otherwise automatic
deportation by going back to
criminal court to vacate the
conviction.

IMMIGRANT LEGAL RESOURCE CENTER

IN SUMMARY
TheEffectofProp.64
onAggravatedFelonies
By decriminalizing conduct such as
cultivation of a small amount of marijuana
for personal use for adults 21 and older,
Prop. 64 eliminates this offense as an
aggravated felony and protects all noncitizens from the draconian consequences
of such a conviction.
By making this conduct an infraction for
persons age 18 to 20, Prop. 64 may or may
not protect this age group from
deportation.
There remains the possibility that the
infraction could be held an aggravated
felony.

PAGE 12

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
D. Marijuana Offenses and Inadmissibility
A noncitizen must be admissible to gain lawful
entry at the U.S. border, or to qualify for lawful
immigration status. A noncitizen becomes
inadmissible (50) if she falls within certain
categories, one of which includes conviction of
any offense that relates to any controlled
substance.
Many individuals who do not have permanent
lawful immigration status currently, including
undocumented individuals, are eligible to apply
for status or will become eligible in the future.
This might include a person who is married to a
U.S. citizen or permanent resident or has an adult
U.S. citizen child; or a person who has lived in the
U.S. for many years and who supports a U.S.
citizen or permanent resident relative who would
face severe hardship if the person were deported.
None of these people can obtain lawful status if
they are considered inadmissible due to a
controlled substance conviction.

1. Inadmissible for Conviction of an Offense


A conviction of any controlled substance offense,
including a minor marijuana offense, will make a
noncitizen permanently inadmissible (51).
In some but not all cases, a person who has been
convicted of just one drug offense in their
lifetime, which involved simple possession of 30
grams of marijuana or less, can apply for a
discretionary waiver of inadmissibility (52).

IMMIGRANT LEGAL RESOURCE CENTER

If the person is permitted to submit the waiver


application, she will have to show that a
qualifying relative (a U.S. citizen or legal
permanent resident spouse, parent, or child) will
suffer extreme hardship if the waiver is denied.
Extreme hardship requires hardship greater than
the common consequences of deportation and
separation, meaning that it must be greater than
normal consequences such as financial loss, loss
of educational opportunities, and the emotional
pain that a family will feel as a result of being
permanently separated. If the waiver is granted,
the person will be admissible and can proceed
despite the conviction. However, in practice the
extreme hardship standard is difficult to meet
(53) and many applications are denied. If the
judge declines to grant the waiver, the person will
remain inadmissible.
There are other immigration applications where
no waiver is possible, including for simple
possession of 30 grams or less marijuana. In that
case, the single marijuana misdemeanor (or
infraction) will mean that the person never can
obtain lawful status through close family.
No waiver exists for conduct other than
possession, use, or possession of paraphernalia
relating to 30 grams or less. It is not possible to
waive minor marijuana offenses such as
transporting or giving away 30 grams or less of
marijuana, or cultivating a small amount. A
person with that conviction is inadmissible with
no possible recourse.

PAGE 13

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
D. Marijuana Offenses and Inadmissibility
Martas Story
Marta was convicted of possession of less than
28.5 grams of marijuana, an infraction, which is
her only conviction. She is married to a U.S.
citizen and is the primary caregiver for their two
young U.S. citizen children. Without the
conviction, she could apply for a family visa
through her husband in order to obtain her green
card. But, because of her infraction, she is
inadmissible. Fortunately, she can apply for an
extreme hardship waiver. Unfortunately, these
waivers are hard to get.

Peters Story
Peter was convicted of giving away a small
amount of marijuana, a misdemeanor and his
only conviction. He has lived in the U.S. for more
than 10 years, and he is the only person who cares
for his four-year old U.S. citizen son who suffers
from a chronic illness. Without the conviction,
Peter could apply for cancellation of removal
even though he does not have a green card (54).
Cancellation of removal is a form of relief that
stops a person from being deported. To qualify, a
person must have lived in the U.S. for more than
10 years, and have a citizen or legal permanent
resident relative would suffer extraordinary
hardship if the caregiver were deported. But
Peter is barred from applying because the
infraction makes him inadmissible. Moreover, he
is not even permitted to apply for the waiver for
low-level marijuana offenses.

IMMIGRANT LEGAL RESOURCE CENTER

IN SUMMARY
TheEffectofProp.64on
theDrugConviction
Inadmissibility
By decriminalizing conduct such as
possession, possession of paraphernalia,
giving away, or transporting 28.5 grams or
less of marijuana, or cultivating up to six
marijuana plants by adults 21 and older,
Prop. 64 protects immigrants from being
inadmissible based on the conviction.
By making such conduct an infraction for
persons age 18-20, Prop. 64 might protect
those persons from being inadmissible (if a
California infraction is held not to be a
conviction for immigration purposes; see
Part IV.A.1, above).

PAGE 14

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
D. Marijuana Offenses and Inadmissibility
2. Inadmissible for Making a Formal Admission of
Committing an Offense
A noncitizen is inadmissible if she formally admits to
immigration officials that she committed a drug
crime, even without a conviction (55). In practice,
immigration officials rarely use this inadmissibility
ground, but it is used sometimes; see below story of
Camilla.
To be inadmissible, the individual must formally
admit to conduct that is considered a crime in the
jurisdiction where the act was committed or under
federal law. If a state, such as California, legalizes
possession of marijuana, the conduct is not a crime
under state jurisdiction but remains crime
under federal law even if the conduct took place on
state land or in a private home (56).

Camillas Story
In 2015, a graduate student at a Colorado university
was refused admission or entry at the U.S. border
because immigration officials saw she had a photo
on her phone of herself in a legal, Colorado
marijuana dispensary. She admitted to immigration
officials that she had legally used marijuana in
Colorado. Immigration officials found that she had
admitted to committing a federal drug offense, and
turned her away at the border despite her valid visa
to enter the U.S (57).

IN SUMMARY
TheEffectofProp.64on
DrugOffenseAdmission
Inadmissibility
As long as the federal drug laws remain in
place, noncitizens and immigration
advocates will need to be aware of this
potential issue.
Immigration advocates will have to warn
clients not to formally admit lawful state
conduct to immigration officials. Many
immigrants are unrepresented and may
make a formal admission if questioned.
Advocates will need to work with
immigration officials to stop eliciting
admissions.

In Camillas case, she was not inadmissible because


she committed a drug offense. She was
inadmissible based on formally admitting to an
immigration official that she committed the offense.

IMMIGRANT LEGAL RESOURCE CENTER

PAGE 15

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
E. The Immigration Impact of Prop. 64 on 18 to 20 Year Olds
Prop. 64 legalizes the possession and personal use of marijuana for people who are 21 years of age
and older. It also reduces the consequences for individuals who are under 21 years, creating two
tiers of penalties: one tier is for people under 18 years of age, and one is for people 18, 19 or20-to
20 years of age.
People under 18 years of age can be found responsible for an infraction in delinquency
proceedings for marijuana related conduct. Because a delinquency finding is not considered a
conviction for immigration purposes (61), this has few consequences.
People 18 to 20 years of age can also be found guilty of an infraction such as marijuana possession
or use. While there are no published cases and there is a strong argument against this, advocates
report incidents where DHS or U.S. consulates have treated a California infraction as a conviction
for immigration purposes. See discussion at Part IV.A.1, above. If an infraction is a conviction, then
this group of individuals will continue to be subject to same immigration consequences after the
passage of Prop. 64. In fact, if an infraction is treated as a conviction, then an infraction for the
planting and cultivation of marijuana plants for personal use could still be an aggravated felony
for 18 to 20 year olds, because a conviction of that offense is classified as aggravated felony for
immigration purposes.
One exception is that a few immigration benefits are barred only by conviction of two or three
(depending on the relief) misdemeanors or a felony, and not by conviction of an infraction. In such
cases, a conviction for any of the infractions identified in Prop. 64 will not create a bar to relief.
These include the Deferred Action for Childhood Arrivals program (DACA), briefly described in
Part IV.F.

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PAGE 16

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PAGE 17

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
F. The Immigration Impact of Prop. 64 on DACA
and TPS
Some key humanitarian programs are available
only if the person has not been convicted of two
or three (depending on the program)
misdemeanors or one felony. These programs
include DACA and TPS, which are described
briefly below.
By decriminalizing minor marijuana offenses,
Prop. 64 will help to ensure that people who are
21 years or older are not disqualified from these
humanitarian programs by a drug conviction.
Prop. 64 also may help persons age 18 to 20
because it will make these offenses infractions.
An infraction will not trigger the
felony/misdemeanors bar to DACA and TPS, and
it might not make the person inadmissible, which
is a bar to TPS but not to DACA.

Deferred Action for Childhood Arrivals.


In June 2012, DHS announced a form of
administrative relief called Deferred Action for
Childhood Arrivals (hereafter DACA), which
benefits some people who were brought to the
U.S. as children and who have attended high
school or served in the military in the U.S (62).
DACA provides temporary protection against
deportation. When a person is accepted for
DACA, they may apply for a work permit, social
security number, Medi-Cal, a California drivers
license, and permission to travel outside of and
return to the U.S (63).

IMMIGRANT LEGAL RESOURCE CENTER

A marijuana conviction can bar eligibility for


DACA relief if it is accompanied by: 1) any three
misdemeanors convictions from three different
incidents; 2) a conviction of a significant
misdemeanor (90 days or more jail sentence, or
any distribution or trafficking conviction); or 3) a
conviction of any felony (64).
Prop. 64 would open eligibility for DACA because
it would: decriminalize certain marijuana-related
offenses committed by adults 21 and older that
are currently classified as misdemeanor or felony
offenses; reduce these offenses to infractions for
persons age 18 to 20 years (and infractions are not
a bar to DACA (65)); provide a way to reduce most
prior marijuana convictions to a misdemeanor or
infraction; provide a way to reduce prior
sentences for these convictions (important
because a sentence of 91 days or more is a bar to
DACA); and provide a form of post-conviction
relief that will eliminate prior convictions for
purposes of DACA (regardless of whether it
eliminates the conviction for other immigration
purposes) (66).
In California, over 340,000 people are potentially
eligible for DACA (67). Of these, about 213,000
people have applied for DACA and about 130,000
potentially eligible Californians have not yet
applied (68). By removing criminal conviction
bars, Prop. 64 will increase the number of
individuals eligible for DACA.

PAGE 18

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
F. The Immigration Impact of Prop. 64 on DACA
and TPS
Temporary Protected Status.
The Secretary of Homeland Security may
designate Temporary Protected Status
(hereinafter TPS) for any country encountering
catastrophic events such as ongoing armed
conflict, earthquake, flood, drought, or other
extraordinary and temporary conditions. Under
this humanitarian program, nationals of that
country who are granted TPS will be permitted to
remain legally in the U.S. for a designated period
of time, and will receive employment
authorization (69). TPS is usually granted for about
a year, but it can be renewed multiple times. TPS
helps nationals of countries suffering the most
devastating conditions; currently countries such
as Somalia, Syria, Haiti, Sudan, and North Sudan
are designated for TPS (70).
A marijuana conviction will bar eligibility for TPS if
it is accompanied by: 1) any two misdemeanor
convictions; 2) any felony conviction; and 3)
conviction of a drug offense that causes
inadmissibility. Prop. 64 will preserve eligibility
for TPS because it will decriminalize minor
marijuana offenses committed by adults 21 and
older that are currently classified as misdemeanor
or felony offenses and reduce these offenses to
infractions for persons 18 to 20 years of age
(infractions are not a bar to TPS as a misdemeanor
and might not be an inadmissible drug
conviction).

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PAGE 19

THE IMPACT OF MARIJUANA OFFENSES


ON IMMIGRANTS
G. The Immigration Impact of Prop. 64 on Individual Offenses
1. Effect on Persons Over 21 Years of Age When They Commit the Offense
The following chart summarizes how Prop. 64 will impact the penalties associated with certain marijuana
related offenses, if committed by a person age 21 or over.

2. Effect on Persons 18 to 20 Years of Age When They Commit the Offense


While Prop. 64 decriminalizes the above conduct if the person is at least 21 years old, the conduct remains
punishable as an infraction for persons age 18 to 20, 19 or 20 to 20. As discussed above, there is no
precedent establishing whether California infractions are convictions for immigration purposes, but
advocates have observed that some immigration authorities do treat them as convictions.
If immigration authorities treat infractions as a conviction, then offenses that have been reduced to
infractions for 18 to 20 year olds under Prop. 64 will continue to be damaging drug convictions, and each
Yes in the chart above for adults 21 and older becomes a No, for persons age 18 to 20. But if an
infraction is not considered a conviction for immigration purposes, these young people will be protected.

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PAGE 20

Part II
THE EFFECT OF PROP. 64 ON
POST-CONVICTION RELIEF FOR
IMMIGRANTS
PROP. 64 PROVISIONS THAT CAN
CHANGE A SENTENCE
PROP. 64 THAT REDUCE A
CONVICTION TO A
MISDEMEANOR OR INFRACTION
PROP. 64 PROVISIONS THAT
ELIMINATE A CONVICTION OR
ARREST RECORD

THE EFFECT OF PROP. 64 ON


POST-CONVICTION RELIEF
FOR IMMIGRANTS
Prop. 64 provides for post-conviction relief for qualifying marijuana convictions and sentences
that take place before November 9th 2016 (71). Prop. 64 post-conviction relief can be divided into
three categories: reduction of sentence; reduction of offense level (e.g., from misdemeanor to
infraction); and elimination, dismissal, purging, and/or sealing of a conviction and arrest record.
Immigration authorities will give effect to some but not all types of state post-conviction relief.
Generally, immigration authorities will honor a state order that reduces a sentence or that
reduces an offense to a misdemeanor or infraction. Thus, these Prop. 64 provisions should be
given effect in immigration proceedings. Immigration authorities will also honor a state order
that eliminates a prior conviction if it is based on a ground of legal invalidity, as opposed to having
a mere rehabilitative or humanitarian purpose. It is not clear whether Prop. 64 provisions
dismissing the conviction will be given effect in immigration proceedings.

A. Prop. 64 Provisions that Change a Sentence


Pursuant to Cal. Health & Safety Code Section 11361.8, subdivisions (b), (c), added by Prop. 64, a
person who is convicted and serving a sentence who would not have been guilty of an offense or
would have been guilty of a lesser offense under Prop. 64 can apply to recall or dismiss the
sentence because it is legally invalid.
Generally immigration authorities give effect to a state action that changes a sentence even if the
change is not based on legal invalidity (72), and they should in this instance. However, when it
comes to controlled substance offenses, the immigration penalties generally flow from the
conviction itself and not from the length of sentence. Here, because the conviction would stand
and only the sentence would be reduced or eliminated, the sentence reduction has little effect on
the immigration penalties. There are a few exceptions, one of which is the DACA administrative
program, where a misdemeanor can act as a bar to eligibility if a sentence of 90 days or more is
imposed and a reduction below that level can remove the bar. See discussion of DACA at Part
IV.F.

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PAGE 21

THE EFFECT OF PROP. 64 ON


POST-CONVICTION RELIEF
FOR IMMIGRANTS
B. Prop. 64 Provisions that Reduce a Conviction to a Misdemeanor or Infraction
Pursuant to Cal. Health & Safety Code Section 11361.8, subdivisions (e)-(h), as added by Prop. 64, a
person who has completed her sentence can file an application to have the conviction dismissed
and sealed because the prior conviction is now legally invalid or redesignated as a misdemeanor
or infraction in accordance with the various new offense sections.
Generally immigration authorities will accept any state action, such as this one, that reduces an
offense to a misdemeanor or infraction (73). This would have great effect if immigration
authorities were to find that an infraction reduced from a felony or misdemeanor is not a
conviction. That would mean that the person no longer has a deportable or inadmissible drug
conviction for immigration purposes. However, this is not a guaranteed outcome as discussed at
Part IV.A.1.
Otherwise, when it comes to controlled substance offenses the immigration penalties generally
flow from the conviction itself and not from its classification as a felony or misdemeanor. There
are a few exceptions, however. For the DACA administrative program, one felony conviction, or
three misdemeanor convictions, act as a bar. One felony or two misdemeanor convictions is a bar
to the TPS humanitarian program (74). Reducing a felony to a misdemeanor, a misdemeanor to
an infraction, or removing criminal penalties entirely can remove these bars to eligibility.

IMMIGRANT LEGAL RESOURCE CENTER

PAGE 22

THE EFFECT OF PROP. 64 ON


POST-CONVICTION RELIEF
FOR IMMIGRANTS
C. Prop. 64 Provisions that Eliminate a Conviction or
Arrest Record
1. Dismissed or Sealed Conviction and Arrest Record
Pursuant to Pursuant to Cal. Health & Safety Code
Section 11361.8, subdivisions (e)-(h), as added by Prop.
64, a person who has completed her sentence can file
an application to have the conviction dismissed and
sealed because the prior conviction is now legally
invalid in accordance with the various new offense
sections.
Federal immigration law does not give effect to all
types of state post-conviction relief. In general, the
federal rule is that state rehabilitative relief to
eliminate a conviction will not be given effect in
immigration proceedings. State rehabilitative relief
refers to statutes that eliminate a prior conviction for
humanitarian or rehabilitative reasons. For example, a
defendant will not qualify for relief for successfully
completing probation (75). In that case, even though
California considers the offense to have been partly or
wholly eliminated, the disposition remains a
conviction for immigration purposes.
Immigration authorities will give effect to a vacation
of judgment based on a procedural or substantive
defect in the underlying criminal proceedings, (76)
such as a ground of legal invalidity such as a
constitutional error or other problem. This means, in
order for post-conviction relief to have an effect for
immigration purposes, the conviction must be
eliminated for a legal defect. Immigration authorities
will give full faith and credit to a judgment that states
that the offense was vacated for legal invalidity
without going behind the judgment (77).

IMMIGRANT LEGAL RESOURCE CENTER

Prop. 64 specifically provides that an applicant


may ask a judge to dismiss and seal a qualifying
prior conviction as being legally invalid.
Arguably immigration authorities must accept
the judges order vacating the conviction for
legal invalidity. Immigration judges routinely
respect criminal court orders vacating
convictions on general grounds of legal
invalidity. It is possible, however, that despite
the explicit language of Prop. 64 immigration
authorities may refuse to honor the court order
on the premise that the ground of legal
invalidity was not in existence at the time the
conviction first arose or that the statute does
not identify any specific legal defect (78). To
further support their case, when requesting
relief under Health & Safety Code 11361.8(e)(h), immigrant advocates may decide to ask the
criminal court to include additional grounds of
legal invalidity in the judgment. One possible
ground of invalidity is that the immigrant
defendant was not informed, or did not
understand, that pleading guilty to a minor
marijuana offense would result in terrible
immigration consequences. Thus, the
defendant did not make a knowing waiver of
the right to trial (79).
Even if immigration courts hold that the
disposition remains a conviction, it is possible
that in some cases the sealing of the records
will make it impossible for immigration
authorities to produce sufficient proof of the
convictions existence as discussed more fully
below.

PAGE 23

THE EFFECT OF PROP. 64 ON


POST-CONVICTION RELIEF
FOR IMMIGRANTS
C. Prop. 64 Provisions that Eliminate a Conviction or
Arrest Record
2. Destruction and Purging of a Record of Arrest and
Conviction After Two Years
Pursuant to Cal. Health & Safety Code Section 11361.5
subdivision (a), arrest and conviction records for adults
18 and older for possessing, transporting or giving
away small amounts of marijuana will be destroyed
from criminal records after two years (80). In this case,
the conviction is not eliminated for legal invalidity and
appears to continue as a conviction for immigration
purposes. Immigrants who can vacate the conviction
meaning dismissing and sealing the conviction
pursuant to Health & Safety Code Section 11361.8(e)(h), discussed in Part V.C.1 above, should do so to
obtain possible additional protection. It is possible
that if the arrest and conviction are truly sealed as
well as removed from all law enforcement databases,
immigration authorities will not be able to establish
that it exists sufficiently to bring immigration
consequences. However, authorities may be able to
locate other probative evidence of the existence of the
conviction, so immigrants will be advised not to rely
on this possibility.
This section of Prop. 64 provides similar protection for
persons who committed the offense while under the
age of 18, although because these are delinquency
dispositions they are not considered a conviction for
almost any immigration purpose.

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PAGE 24

IMMIGRANT LEGAL RESOURCE CENTER

PAGE 25

CONCLUSION
While it is impossible to quantify the impact that Prop. 64 will have on the immigrant community in
California, it is clear that Prop. 64 will significantly mitigate the immigration consequences of some
marijuana related drug offenses. In looking at the impact Prop. 64 would have on immigrants in
California, one significant obstacle we encountered was the lack of available data on marijuana
arrests for immigrants. While both state and federal law enforcement track arrests statistics based on
race, age, and gender, information about immigration status is not simultaneously collected. In
addition, data on race is inconsistently gathered. As some agencies, like the FBI, do not use Hispanic
or Latino as its own distinct race (81). As a result, Latinos are categorized as white or another racial
identification further skewing the data collected (82).
After consulting with researchers at both Human Rights Watch and The Drug Policy Alliance,
reviewing data available from the California Department of Justice and the California Office of the
Attorney General, we were unable to locate statistics on the arrests of non-citizens for marijuana
related offenses. We currently have an outstanding Freedom of Information Act request pending
with Immigration and Customs Enforcement (ICE) that may be able to provide some additional
insights.
By decriminalizing certain activities and de-emphasizing law enforcements focus on marijuana,
Prop. 64 can play a substantial role in reducing deportations in California and keep families and
communities intact. With immigrants making up more than 25% of the 38.8 million people living in
California, Prop. 64 will impact a large number of lives.

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PAGE 26

FOOTNOTES
1 For persons 21 and older, Prop 36 removes all criminal prohibitions on the possession, transport, and sharing of
up to 28.5 grams of marijuana or 8 grams of concentrated marijuana as well as the cultivation of and harvest of up
to 6 plants at home. For persons 18 to 20 year of age, the AUMA reduces the penalties for these same activities to
an infraction offenses punishable only by a fine (and associated fees)
(2) For the purposes of this report, minor marijuana offenses refer to the possession, transport, and sharing of up
to 28.5 grams of marijuana or 8 grams of concentrated cannabis, as well as the cultivation, harvest, and storage of
up to 6 plants at home.
(3) Under Prop. 64 most marijuana related felonies have been reduced to misdemeanors or wobblers (activities
which may be charged as misdemeanors or felonies).
(4) Federal immigration law employs its own definition of when a state criminal court disposition constitutes a
conviction. Some state infractions have been held not to be a conviction for immigration purposes because they
lack procedural protections such as access to a jury trial or the right to appeal. It is unclear whether a California
infraction will be held a conviction for this purpose. See discussion at xxx.
(5) Marisol Cuellar Mejia & Hans Johnson, Immigrants in California, PUBLIC POLICY INSTITUTE OF CALIFORNIA
(May 2013), http://www.ppic.org/main/publication_show.asp?i=258.
( )

6 Anna Brown & Renee Stepler, Statistical Portrait of the Foreign-Born Population in the United States, PEW
RESEARCH CENTER, HISPANIC TRENDS (Apr. 19, 2016), http://www.pewhispanic.org/2016/04/19/statisticalportrait-of-the-foreign-born-population-in-the-united-states-key-charts/#2013-fb-authorized-pie.
(7) Marisol Cuellar Mejia & Hans Johnson, Immigrants in California, PUBLIC POLICY INSTITUTE OF CALIFORNIA
(May 2013), http://www.ppic.org/main/publication_show.asp?i=258.
(8) Id.
(9) Cuellar Mejia and Johnson, supra.
(10) See, e.g. American Civil Liberties Union, The War on Marijuana in Black and White, Billions of Dollars Wasted
on Racially Biased Arrests, 4 (June 2013), https://www.aclu.org/files/assets/aclu-thewaronmarijuana-rel2.pdf; THE
GROWTH OF INCARCERATION IN THE UNITED STATES 60-63, 97 (Jeremey Travis ed., The National Academy Press
2014); Drug Policy Alliance & American Civil Liberties Union of California, Marijuana Enforcement Disparities in
California: A Racial Injustice, (May 2016),
http://www.drugpolicy.org/sites/default/files/CA_Marijuana_Infractions.pdf.
( )

11) American Civil Liberties Union, The War on Marijuana in Black and White, Billions of Dollars Wasted on Racially
Biased Arrests, 4 (June 2013), https://www.aclu.org/files/assets/aclu-thewaronmarijuana-rel2.pdf.
(12) Id.
(13) Federal Bureau of Investigation, Uniform Crime Reports, 2014 Crime in the United States, Arrests Table, Arrests
for Drug Abuse Violations, Percent Distribution by Region, 2014 (2015), https://www.fbi.gov/aboutus/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/persons-arrested/main
(

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PAGE 27

FOOTNOTES, CONT.
14) Substance Abuse and Mental Health Services Administration, Results from the 2013 National Survey on Drug
Use and Health, 26-7 (Rockville, MD: Substance Abuse and Mental Health Services Administration, 2014).
(15) American Civil Liberties Union, The War on Marijuana in Black and White, Billions of Dollars Wasted on Racially
Biased Arrests (June 2013), https://www.aclu.org/files/assets/aclu-thewaronmarijuana-rel2.pdf; Jamie Fellner,
Decades of disparity: drug arrests and race in the United States (Human Rights Watch, 2009); Meghana Kakade et
al., Adolescent Substance Use and Other Illegal Behaviors and Racial Disparities in Criminal Justice System
Involvement: Findings From a U.S. National Survey, American Journal of Public Health 102, no. 7 (2012). While
national arrest data by ethnicity are not systematically collected and are therefore incomplete, state-level data
show that Latinos are disproportionately arrested for marijuana offenses. See, e.g., Drug Policy Alliance and
Marijuana Arrest Research Project, "Race, Class and Marijuana Arrests in Mayor de Blasio's Two New Yorks: the
N.Y.P.D.'s Marijuana Arrest Crusade Continues in 2014," (2014) http://www.drugpolicy.org/resource/race-class-andmarijuana-arrests-mayor-de-blasios-two-new-yorks-nypds-marijuana-arrest-crus; California Department of
Justice, "Crime in California 2013," (2014); Drug Policy Alliance & American Civil Liberties Union of California,
Marijuana Enforcement Disparities in California: A Racial Injustice, (May 2016),
http://www.drugpolicy.org/sites/default/files/CA_Marijuana_Infractions.pdf.
(

16) See Drug Policy Alliance & American Civil Liberties Union of California, Marijuana Enforcement Disparities in
California: A Racial Injustice, (May 2016),
http://www.drugpolicy.org/sites/default/files/CA_Marijuana_Infractions.pdf.
(17) 10 Year Arrest Data 2006-2015, Open Justice, California Department of Justice (2016),
http://openjustice.doj.ca.gov/data; New Americans in California: The Economic Power of Immigrants, Latinos, and
Asians in the Golden State, AMERICAN IMMIGRATION COUNCIL,
http://www.immigrationpolicy.org/sites/default/files/docs/new_americans_in_california_2015.pdf.
(18) Sari Horwitz, Justice Department set to free 6,000 prisoners, largest one-time release, THE WASHINGTON
POST (Oct. 6, 2015), https://www.washingtonpost.com/world/national-security/justice-department-about-to-free6000-prisoners-largest-one-time-release/2015/10/06/961f4c9a-6ba2-11e5-aa5b-f78a98956699_story.html.
(19) Id.
(20) Marisol Cuellar Mejia & Hans Johnson, Immigrants in California, PUBLIC POLICY INSTITUTE OF CALIFORNIA
(May 2013), http://www.ppic.org/main/publication_show.asp?i=258.
(

21) See e.g., The Foreign-Born Population in the United States: 2010, American Community Survey Reports, U.S.
CENSUS (May 2012), https://www.census.gov/prod/2012pubs/acs-19.pdf.
(22) RACE FORWARD, THE CENTER FOR RACIAL JUSTICE INNOVATION, Shattered Families (Nov. 11, 2011), 3,
https://www.raceforward.org/research/reports/shattered-families?arc=1.
(23) Id. at 24.
(24) Laura Hill & Joseph Hayes, Undocumented Immigrants, PUBLIC POLICY INSTITUTE OF CALIFORNIA, (June
2015), http://www.ppic.org/main/publication_show.asp?i=818.
(25) Padilla v. Kentucky, 559 U.S. 356, 365 (2010).
(

26) 8 U.S.C. 1101-1503. Corresponding regulations are contained in 8 C.F.R. 1.1 et seq.

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PAGE 28

FOOTNOTES, CONT.
27) See, Anti-Drug Abuse Act of 1988 (ADAA, November 18, 1988) (created aggravated felony category); the
Immigration Act of 1990 (IA 90, November 29, 1990) (eliminated the Judicial Recommendation Against
Deportation, added new aggravated felonies and new penalties for conviction); Miscellaneous and Technical
Immigration and Naturalization Amendments of 1991 (MTINA, December 12, 1991) (penalties for aggravated felons);
Violent Crime Control and Law Enforcement Act of 1994 (September 13, 1994) and Immigration and Nationality
Technical Corrections Act of 1994 (INTCA Oct. 24, 1994)(added dozens of new aggravated felonies, created
administrative deportation with no hearing before an immigration judge, judicial deportation, Snitch visas);
and the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA, April 24, 1996) (creates new category we
term deportable for specified grounds, which purports to bar eligibility for section 212(c), release from detention,
and judicial review of deportation order, adds several new aggravated felonies, creates special exclusion
proceedings); and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, September
30, 1996). While the Immigration and Nationality Act refers to drug addiction (see, e.g., 8 USC 1182(a)(1)(iv)), as do
many courts, medical and mental health experts use the term substance use disorders to describe the
conditions in which the recurrent use of alcohol and/or drugs causes clinically and functionally significant
impairment, such as health problems, disability, and failure to meet major responsibilities at work, school, or
home. Substance Abuse and Mental Health Services Administration, Substance Abuse Disorders (updated Oct.
27, 2015), http://www.samhsa.gov/disorders/substance-use; DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 5th ed., (American Psychiatric Association, 2013). See also Ledesma-Cosino v. Lynch, 819 F.3d 1070
(9th Cir. 2016), finding that the bar to establishing good moral character based upon being an habitual drunkard
violates equal protection, because the medical disability of chronic alcoholism lacka any rational relation to moral
character.
(28) Operational and Support Components, THE DEPARTMENT OF HOMELAND SECURITY,
https://www.dhs.gov/operational-and-support-components.
(29) FY2015 ICE Immigration Removals, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
https://www.ice.gov/removal-statistics.
(30) Proposition 64, Control, Regulate and Tax Adult Use of Marijuana Act (hereafter Prop. 64), California
Statewide Initiative 15-0103, Section 3 (Dec. 7, 2015), https://oag.ca.gov/system/files/initiatives/pdfs/150103%20%28Marijuana%29_1.pdf?.
(

31) Id. at Section 4.


(32) Id. at Section 8.
(33) Id.
(34) Grace Meng, A Price Too High, US Families Torn Apart by Deportations for Drug Offenses, HUMAN RIGHTS
WATCH (Jun. 16, 2015), https://www.hrw.org/report/2015/06/16/price-too-high/us-families-torn-apart-deportationsdrug-offenses; Secure Communities and ICE Deportations: A Failed Program?, TRAC IMMIGRATION (Apr. 8, 2014),
http://trac.syr.edu/immigration/reports/349/#f3.
(35) For these deported individuals, marijuana possession was the most serious offense on their records. Alissa
Scheller, How Marijuana Gets People Deported, in 5 Simple Charts, THE HUFFINGTON POST (Apr. 18, 2014),
http://www.huffingtonpost.com/2014/04/17/marijuana-possession-deportations_n_5168742.html; Secure
Communities and ICE Deportations: A Failed Program?, TRAC IMMIGRATION (Apr. 8, 2014),
http://trac.syr.edu/immigration/reports/349/#f3.
(

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PAGE 29

FOOTNOTES, CONT.
36) Thirty-eight percent of cases involved possession for personal use thirty-one percent of cases contained no
information about the nature of the drug offense; and the remainder of the cases involved trafficking, including trafficking
of very small amounts of drugs. See Grace Meng, A Price Too High, US Families Torn Apart by Deportations for Drug
Offenses, HUMAN RIGHTS WATCH (Jun. 16, 2015), Figure 2, at https://www.hrw.org/report/2015/06/16/price-too-high/usfamilies-torn-apart-deportations-drug-offenses.
(37) See Meng, Figure 3a.
(38) See Meng, Figure 3b.
(39) Under Board of Immigration Appeals precedent, a California infraction should not considered a conviction. This is
because a defendant does not have a right to a jury trial at any stage of the proceedings; an infraction is a noncriminal
offense for which imprisonment may not be imposed; and a prior infraction cannot be the basis of a sentence
enhancement for a subsequent misdemeanor or felony offense. See further discussion at Arguing that a California
Infraction is Not a Conviction, IMMIGRANT LEGAL RESOURCE CENTER, available at http://www.ilrc.org/resources/arguingthat-a-california-infraction-is-not-a-conviction-test-for-non-misdemeanor-offenses.
(40) A person who originally was convicted of a misdemeanor or felony did receive constitutional protections during the
proceeding. Thus, it meets the definition of conviction based on those factors. However, once the conviction becomes an
infraction for all legal purposes under Prop. 64, it cannot be used as a prior conviction to enhance a sentence in a future
prosecution, and it carries no possible jail sentence (and any sentence that was imposed will be eliminated for all
purposes, including immigration). It is possible that based on these separate factors, the disposition would not be a
conviction. See further discussion at Part V.B.
(

41) 8 U.S.C. 1227(a)(2)(B).


(42) 8 U.S.C. 1227(a)(2)(B)(i).
(43) See, e.g., Matter of Martinez-Espinoza, 25 I&N Dec. 118, 125-126 (BIA 2009) (possession of paraphernalia relating to use
of a small amount of marijuana comes within the exception).
(44) Going forward, a lawful permanent resident age 18 to 20 who is convicted of an infraction for possessing, possessing
paraphernalia, or being under the influence of this amount of marijuana will not be deportable because it will come
within this exception. (In addition, the person may argue that an infraction is not a conviction for immigration purposes;
see Part IV.A.1, above).
(45) See, e.g., Matter of Martinez-Espinoza, supra at 125 (possessing marijuana in a school zone does not come within the
exception).
(

46) See Part IV.C, discussing inadmissibility. A permanent resident who travels outside the U.S. will be held inadmissible
upon her return. She may or may not qualify to submit an application for a highly discretionary waiver of inadmissibility.
(47) 8 U.S.C. 1101(a)(43).
(48) United States v. Reveles-Espinoza, 522 F.3d 1044 (9th Cir. 2008) (holding that CAL HEALTH & SAFETY CODE 11358(a) is
automatically a controlled substance aggravated felony).
(49) Howard Dean Bailey, I Served My Country. Then It Kicked Me Out, POLITICO (Apr. 10, 2014),
http://www.politico.com/magazine/story/2014/04/howard-dean-bailey-deported-i-served-my-country-and-then-it-kickedme-out-105606_full.html?print#.V0fFFpMrJE4.
(50) Noncitizens who are inadmissible can be held ineligible to receive visas and ineligible to be admitted to the United
States. 8 USC 1182(a). They are barred from applying for several types of immigration applications. See discussion of
immigration applications and the criminal bars at Immigration Relief Toolkit (ILRC 2016) at
http://www.ilrc.org/files/documents/17_questionnaire_jan_2016_final.pdf.
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FOOTNOTES, CONT.
51) 8 U.S.C. 1187(a)(2)(i)(II).
52) 8 U.S.C. 1182(h)(B).
(53) See, e.g., Shooshtary v. INS, 39 F.3d 1049, 1051 (9th Cir. Cal. 1994) (extreme hardship requires a showing of great
actual or prospective injury beyond the family separation and economic dislocation normally suffered in
deportation);
(54) INA 240A(b).
(55) 8 U.S.C. 1187(a)(2)(i)(II).
(
(

56) Gonzales v. Raich, 545 U.S. 1 (2005).


(57) Meredith Hoffman, When Immigrants Are Deported for Smoking Weed, VICE (May 3, 2016),
http://www.vice.com/en_ca/read/when-immigrants-are-deported-for-smoking-weed.
(

61) Matter of Devison, 22 I&N Dec. 1362 (BIA 2000); Matter of C.M., 5 I&N Dec. 327 (BIA 1953); Matter of RamirezRivero, 18 I&N 135 (BIA 1981).
(62) Executive Actions on Immigration, U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
https://www.uscis.gov/immigrationaction.
(63) President Obamas New Immigration Programs: Deferred Action for Childhood Arrivals and Parents,
IMMIGRANT LEGAL RESOURCE CENTER, www.ilrc.org/files/documents/daca_dapa_flyer.pdf.
(64) Crimes-Related Bars to DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents)
and DACA (Deferred Action for Childhood Arrivals), IMMIGRANT LEGAL RESOURCE CENTER & NATIONAL
IMMIGRATION PROJECT, www.ilrc.org/files/documents/chart_dapa_daca_bars_jan.2015.pdf .
(65) A California infraction is not a bar to DACA because it does not meet the definition of misdemeanor for that
purpose, which requires a potential sentence of five days. See DACA FAQs, Question # 63, at
https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-askedquestions
(

66) For purposes of DACA, almost any form of post-conviction relief even so-called rehabilitative or
humanitarian relief will be held to eliminate a conviction as an absolute bar. See discussion at Part V.C. The
post-conviction relief provided by Prop. 64 qualifies as humanitarian or rehabilitative relief. (This relief might or
might not also qualify as a vacation of judgment for cause, which would eliminate the conviction for all
immigration purposes. See Part V.C.)
(67) National and County Estimates of Populations Eligible for DACA and DAPA Programs, 2009-2013, THE
MIGRATION POLICY INSTITUTE, http://www.migrationpolicy.org/programs/us-immigration-policy-program-datahub/unauthorized-immigrant-population-profiles .
(69) See 18 USC 1254a.
(70) For a complete list of countries, and other information about TPS, go to www.uscis.gov and click on
Humanitarian and then Temporary Protected Status.
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71) The date in which AUMA goes into effect.
72) See, e.g., Matter of Song, 23 I & N Dec. 173 (BIA 2001).
(73) See, e.g., Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003), reversed on other grounds in Ceron v.
Holder, 747 F.3d 773 (9th Cir. 2014) (en banc).
(74) A conviction of one felony or two misdemeanors is a bar to Temporary Protected Status for persons from
countries that are establishing catastrophic events (see 8 U.S.C. 1254a(c)(2)(B)) and to Family Unity for relatives of
persons who participated in the legalization programs (see 8 C.F.R. 236.13, 236.18).
(75) See, e.g., Cal Penal Code 1203.4(a) or 1000.3. Specifically because federal immigration law considers a
conviction to exist despite dismissal of charges under Cal Penal Code 1000.3, California passed Penal Code
1203.43 (effective January 1, 2016) to assist immigrants to eliminate this conviction for cause. But new 1203.43
only works for deferred entry of judgment cases, pursuant to Cal Penal Code 1000 et seq.
(
(

76) See, e.g., Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).
77) See, e.g., Matter of Pickering; Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000).
(78) See, e.g., Matter of Adamiak, 23 I. & N. Dec. 878 879990 (BIA 2009) (vacatur based on a violation of a state
advisal statute is effective at eliminating the immigration consequences of a conviction).
(79) See, e.g., People v. Giron, 11 Cal. 3d 794 (1974) (permitting a defendant to withdraw his plea of guilty because
he was unaware of the immigration consequences of a guilty plea).
(
(

80) Prop. 64 expands this rule to include arrest and conviction records for the possession of small amounts of
concentrated cannabis. Arrests and conviction records for possession of marijuana or concentrated cannabis on
school grounds are excluded from destruction.
(81) American Civil Liberties Union, The War on Marijuana in Black and White, Billions of Dollars Wasted on Racially
Biased Arrests, 4 (June 2013), https://www.aclu.org/files/assets/aclu-thewaronmarijuana-rel2.pdf.
(82) Id.
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